AMENDMENT TO EMPLOYMENT
AGREEMENT
This Amendment to
Employment Agreement (the “Amendment”) is entered into
as of October 31, 2008 (the “Effective Date”),
between Carl W. Hull (the “Executive”) and Gen-Probe
Incorporated, a Delaware corporation
(“Gen-Probe”).
WHEREAS, on
February 13, 2007, the Executive and Gen-Probe entered into an
Employment Agreement, which agreement was amended and restated
effective as of March 1, 2008 (as amended and restated, the
“Agreement”) which sets forth the terms of the
Executive’s employment with Gen-Probe and provides for
benefits upon the occurrence of certain terminations of
Executive’s employment; and
WHEREAS, the
parties wish to amend certain provisions of the Agreement to
reflect recent changes affecting the taxation of deferred
compensation arrangements under Section 409A of the Internal
Revenue Code of 1986, as amended, pursuant to the terms and
conditions set forth below.
NOW THEREFORE, in
consideration of the foregoing and the mutual agreements contained
herein, the parties hereby agree as follows effective as of the
Effective Date. Except as otherwise defined herein, capitalized
terms shall have the meanings assigned to them in the
Agreement.
1. The
following shall be added at the end of Section 4:
“To the
extent that reimbursements made pursuant to this Agreement are
subject to the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”),
(a) the reimbursement shall be made no later than
December 31 of the calendar year following the year in which
the expense was incurred, (b) the amount of expenses
reimbursed in one year shall not affect the amount eligible for
reimbursement in any subsequent year, and (c) the
Executive’s right to reimbursement under this Section 4
will not be subject to liquidation or exchange for another
benefit.”
2. The
initial text of Section 7 preceding Section 7(a) shall be
amended in its entirety to read as follows:
“If
Gen-Probe terminates the Executive’s employment for reasons
other than for Cause, or if the Executive terminates his employment
for Good Reason, and such termination constitutes a
“separation from service” within the meaning of
Treasury Regulation Section 1.409A-1(h) (a
“Separation from Service”), the Executive shall be
entitled to receive as liquidated damages, the following severance
benefits:”
3. Section 7(a)
of the Agreement shall be amended in its entirety to read as
follows:
(i) Unless
the Executive’s termination under this Section 7 occurs
within eighteen (18) months after a Change in Control, the
Executive shall continue to receive his base salary, at the rate in
effect at the time of his termination of employment, in monthly
installments following termination and continuing for an aggregate
period of twelve (12) months
